REMEDIAL LAW

CIVIL PROCEDURE
Q: Does the rule on service by publication under Section !" Rule ! o# the Rules o# Court apply only to actions
in rem" not actions in personam$
A: The in rem/in personam distinction was significant under the old rule because it was silent as to the kind of action to
which the rule was applicable but this has been changed, it now applies to any action. The present rule expressly states
that it applies in any action where the defendant is designated as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained by diligent inuiry. !ence, the petitioner"s contention that the
complaint filed against him is not covered by the said rule because the action for recovery of sum of money is an action in
personam is not applicable anymore (Santos vs. PNOC Exploration, G.R. No. 170943; Septe!er "3, "00#$.
Q: Distin%uish representative suit #ro& class suit'
#$%#$&$'TAT()$ &*(T +,A&& &*(T
There is only one cause of action belonging to
many persons
There are many causes of action pertaining
separately to several people
-nly the names of those representing the class
appear in the title
All the names of the beneficiaries must be included
in the title
Those representing the class. must be real/real
parties in interest
The representative chose need not be a real party
in interest
Q: (ay the court" upon #indin% that venue is i&properly laid" dis&iss the case motu propio$
A: 'o. *nless and until the defendant ob0ects to the venue in a motion to dismiss, the venue cannot be truly said to have
been improperly laid, as for all practical intents and purposes, the venue, though technically wrong, may be acceptable to
the parties for whose convenience the rules on venue had been devised. The trial court cannot pre/empt the defendant"s
prerogative to ob0ect to the improper laying of the venue by motu proprio dismissing the case (R%&ol' (iet) *ol&in+s vs.
Re+istr, o' -ee&s, Nove!er 1., "000$.
Q: )hat are the li&itations to this liberal policy in allo*in% a&end&ents$ )hen &ay the court re#use to allo* the
a&end&ent$
A: The following are the limitations:
1.$ 1hen the amendment is to delay the action 2&ection 3, #ule 4567
".$ 1hen the amendment is for the purpose of making the complaint confer 0urisdiction upon the court (Rosario
vs. Caran+&an+, 9/ P0il. #4.67
3.$ 1hen the amendment is for the purpose of curing a premature or non/existing cause of action 2 (ipan+1o
vs. 2er1a&o, 10 P0il. .0#; 3on+ vs. 4at1o, 99 P0il. 791$
Q: Depositions *ere ta+en be#ore ,otary Public in -oston and authenticated by Philippine consul there' Is the
deposition.ta+in% proper$
A: 8es. ,eave of court is not reuired when the deposition is to be taken before a secretary of embassy or legation, consul
general, consul, vice/consul or consular agent of the #epublic of the %hilippines and the defendant"s answer has already
been served. !owever, if the deposition is to be taken in a foreign country where the %hilippines has no secretary of
embassy or legation, consul general, consul, vice/consul or consular agent, it may be taken only before such person or
officer as may be appointed by commission. The authentication made by the consul was a ratification of the authority of
the notary public who took the uestioned depositions. The deposition was, in effect, obtained through a commission. 1ith
the ratification of the depositions in issue, there is no more impediment to their admissibility (-%la, vs. -%la,, "00.$.
Q: )hat is the prevailin% rule *hen it co&es to pay&ent o# doc+et #ees$
A: The Manchester rule has been modified in Sun Insurance Office, Ltd. (SIOL) vs. Asuncion which defined the
following guidelines involving the payment of docket fees:
Page 1 of 20
REMEDIAL LAW
4. (t is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed
docket fee, that vests a trial court with 0urisdiction over the sub0ect/matter or nature of the action. 1here the
filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment
of the fees within a reasonable time but in no case beyond the applicable prescriptive or reglementary period.
9. The same rule applies to permissive counterclaims, third/party claims and similar pleadings, which shall not be
considered filed until and unless the filing fee prescribed therefor is paid. The court may also allow payment of
said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period.
3. 1here the trial court acuires 0urisdiction over a claim by the filing of the appropriate pleading and payment of
the prescribed filing fee but, subseuently, the 0udgment awards a claim not specified in the pleading, or if
specified the same has been left for determination by the court, the additional filing fee therefor shall constitute
a lien on the 0udgment. (t shall be the responsibility of the +lerk of +ourt or his duly authori:ed deputy to
enforce said lien and assess and collect the additional fee.
Q: / labor union #iled a case a%ainst the e&ployer in behal# o# hundreds o# e&ployees #or underpay&ent o#
*a%es' Is this a representative suit or a class suit$
A: (t is a representative suit. (n the present case, there are multiple rights or causes of action pertaining separately to
several, distinct employees who are members of respondent *nion. Therefore, the applicable rule is that provided in #ule
3 on #epresentative %arties. 'onetheless, as provided for in the ,abor +ode, a legitimate labor organi:ation has the right
to sue and be sued in its registered name. This authori:es a union to file a representative suit for the benefit of its
members in the interest of avoiding an otherwise cumbersome procedure of 0oining all union members in the complaint,
even if they number by the hundreds ((iana5s S%perar6et vs. N(RC, G.R. No. 111014. 2a, 31, 199/$.
Q: I# the de#endant is a #orei%n private 0uridical entity" not re%istered in the Philippines or has no resident a%ent"
ho* is service o# su&&ons e##ected$
A: &ervice may, with leave of court, be effected out of the %hilippines through any of the following means:
a6 ;y personal service coursed through the appropriate court in the foreign country with the assistance of the
<epartment of =oreign Affairs7
b6 ;y publication once in a newspaper of general circulation in the country where the defendant may be found and
by serving a copy of the summons and the court order by/registered mail at the last known address of the
defendant7
c6 ;y facsimile or any recogni:ed electronic means that could generate proof of service7 or
d6 ;y such other means as the court may in its discretion direct 2A> 'o. 44/3/?/&+6.
Q: (ay a Philippine court declare that a decision o# a #orei%n court is erroneous$
A: 8es. (t is true that under the provisions of &ection @5 of #ule 3A, #ules of +ourt, a 0udgment for a sum of money
rendered by a foreign court Bis presumptive evidence of a right as between the parties and their successors in interest by
a subseuent titleB, but when suit for its enforcement is brought in a %hilippine court, said 0udgment Bmay be repelled by
evidence of a want of 0urisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or factB. *pon the
facts of record, the +ourt held that the decision sought to be enforced was rendered upon a Bclear mistake of lawB and
because of that it makes appellant an innocent party suffer the conseuences of the default or breach of contract
committed by appellee 2'agarmull v. ;inalbagan &ugar, 4AC56.
Q: In a civil case" de#endant did not raise the issue o# lac+ o# 0urisdiction #or non.pay&ent o# correct doc+et #ees'
(ore than seven years a#ter #ilin% the ans*er" and under the auspices o# a ne* counsel" that the issue o#
0urisdiction *as raised #or the #irst ti&e in the &otion to e1pun%e' Is he barred #ro& 2uestionin% the court3s lac+
o# 0urisdiction$
A: 8es. After ;ertuldo vigorously participated in all stages of the case before the trial court and even invoked the trial
court"s authority in order to ask for affirmative relief, petitioners, considering that they merely stepped into the shoes of
their predecessor, are effectively barred by estoppel from challenging the trial court"s 0urisdiction. Although the issue of
0urisdiction may be raised at any stage of the proceedings as the same is conferred by law, it is nonetheless settled that a
party may be barred from raising it on ground of laches or estoppel 2!eirs of ;ertuldo !inog vs. >elicor, D@@ &+#A D?56.
Page 2 of 20
REMEDIAL LAW
Q: Distin%uish de&urrer in civil cases #ro& de&urrer in cri&inal cases'
<$>*##$# (' +()(, +A&$& <$>*##$# (' +#(>('A, +A&$&
1hen the demurrer is denied, the defendant will now
present his evidence to prove his defense because the
defendant does not waive his right to present in the
event the demurrer is denied.
(f the demurrer of the accused is denied the accused is
no longer allowed to present evidence if he had no prior
leave of court.
(f the defendant"s demurrer is granted and the case is
dismissed and the plaintiff appeals to the appellate
court and on appeal the court reverses the order of
dismissal, the appellate court renders 0udgment
immediately in favor of the plaintiff. There is no more
remanding. The defendant loses his right to present
evidence.
(f the demurrer is granted, there is no more appeal by
the prosecution because the accused has already been
acuitted. -therwise, there will be a case of double
0eopardy.
The court cannot on its own initiative, dismiss the case
after the plaintiff rests without any demurrer by the
defendant. There is no such thing as ot% propio
demurrer.
The court may dismiss the action on its own initiative
after giving the prosecution the chance to present its
evidence 2#ule 44A, &ec. 936.
Q: )hat is a negative pregnant$ 4o* is a negative pregnant treated$
A: (t is a denial pregnant with the admission of the substantial facts in the pleading responded to which are not suarely
denied. (t was in effect an admission of the averments it was directed at. &tated otherwise, a negative pregnant is a form
of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse
party. (t is a denial pregnant with an admission of the substantial facts alleged in the pleading. 1here a fact is alleged with
ualifying or modifying language and the words of the allegation as so ualified or modified are literally denied, has been
held that the ualifying circumstances alone are denied while the fact itself is admitted 2 Rep%!li1 vs. San&i+an!a,an, G.R.
No. 1."1.4 7%l, 1., "0036.
Q: Plainti## 5 #iled a co&plaint in the R6C o# (anila #or the collection o# unpaid install&ents re%ardin% a
subdivision lot" pursuant to a pro&issory note" plus interest' De#endant 7 #iled a &otion to dis&iss on the %round
o# lac+ o# 0urisdiction' Is his course o# action proper$
A: 8es, #T+ has no 0urisdiction over the sub0ect matter. The !ousing and ,and *se #egulatory ;oard 2!,*#;6 has
0urisdiction to hear and decide the following cases: 2a6 *nsound real estate business practices7 2b6 claims involving refund
and any other claims filed by subdivision lot or condominium unit buyer against the pro0ect owner, developer, dealer,
broker or salesman and7 2c6 cases involving specific performance of contractual and statutory obligations filed by buyers
of subdivision lot or condominium unit against the owner, developer, dealer, broker or salesman 2&andoval vs. +aneba,
4A5 &+#A CC6.
Q: Does the #ailure to constitute a pangkat in a baran%ay conciliation preclude #ilin% o# a co&plaint in court$
A: 'o. 1hile admittedly no pangkat was constituted, it was not denied that the parties met at the office of the ;arangay
+hairman for possible settlement. The efforts of the ;arangay +hairman, however, proved futile as no agreement was
reached. Although no pangkat was formed, in our mind, there was substantial compliance with the law. (t is noteworthy
that under the aforeuoted provision, the confrontation before the ,upon +hairman or the pangkat is sufficient compliance
with the precondition for filing the case in court 2,umbuan vs. #onuillo, >ay @, 955?6.
Q: )hat is the viatory ri%ht o# a *itness$ Does it apply to both civil and cri&inal cases$
A: (t refers to the right of a witness not to comply with a subpoena. The viatory right may be exercised in civil cases if the
witness resides more than 455 kilometers from his residence to the place where he is to testify by the ordinary course of
travel. The 455/km limitation applies only to civil cases, but not to criminal cases, especially if the person to be
subpoenaed is a defense witness because of the constitutional right of the accused which is a right which cannot be
curtailed by the #ules of +ourt 2PEOP(E vs 2ON8E7O, G.R. No. (9"41.4, O1to!er 31, 19/76.
Q: Distin%uish subpoena #ro& su&&ons'
Page 3 of 20
REMEDIAL LAW
SU-POE,/ SU((O,S
:s to ;0o &ire1te& directed to a witness directed to a defendant in a civil
case
:s to ;0at is !ein+ or&ere& the witness is directed to appear
in court or to bring documents
the defendant is informed that a
complaint is filed against him and
he must file a responsive
pleading within the period
otherwise, 0udgment can be
rendered
:s to ;0at ;o%l& !e t0e e''e1t i'
t0ere is 'ail%re to 1opl,
the witness will be declared in
contempt or his attendance can
be compelled by the issuance of
a warrant for his arrest
a 0udgment in default will be
rendered against the defendant
who fails to comply
:s to appli1a!ilit, applicable to both criminal and
civil case
applies only to civil cases
:s to &istan1e liitation there is a 455/km limitation of its
enforceability
there is no distance limitation
Q: /s a %eneral rule" 0ud%&ent is en#orceable by e1ecution once it beco&es #inal and e1ecutory' )hat are the
e1ceptions to this rule$
A: The following are the exceptions to the rule:
1. 1hen there has been a change in the situation of the parties, which makes the execution ineuitable
2&upervening $ffect <octrine67
". 1hen it appears that the controversy has never been submitted to the 0udgment of the court7
3. 1hen the 0udgment was novated by subseuent agreement of the parties7
4. 1hen it appears that the writ of execution has been improvidently issued7
.. 1hen the writ of execution is defective in substance7
/. 1hen the writ of execution is issued against the wrong party7 an&
7. 1hen the 0udgment debt has been paid or otherwise satisfied.
Q: Su&&ons *as served on the *i#e o# the de#endant' De#endant is not a resident o# the Philippines' Is su&&ons
properly served$
A: 8es. &he is the representative and attorney/in/fact of her husband, which apparently was filed at her behest, in her
aforementioned representative capacity. (n other words, >rs. &chenker had authority to sue, and had actually sued on
behalf of her husband, so that she was, also, empowered to represent him in suits filed against him, particularly in a case,
like the of the one at bar, which is conseuence of the action brought by her on his behalf 2Eemperle vs. &chenker, 4A?C6.
Q: / %roup o# passen%er rode a ship bound #or Cebu City' Durin% the trip" they *ere treated shabbily by the
o##icers o# the vessel' )hen they ca&e bac+ in Ca%ayan de Oro City" they #iled a suit #or da&a%es the co&&on
carrier' De#endant #iled a &otion to dis&iss 2uestionin% the venue o# the action because in the tic+et issued by
S*eet Lines" it is stipulated that in case of a civil action arising from the contract of carriage, the venue of the
action shall !e the "it# of "e!u O$L% and in no other place.& Is the &otion to dis&iss tenable$
A: 'o. +ondition 'o. 4D is subversive of public policy on transfers of venue of actions. =or, although venue may be
changed or transferred from one province to another by agreement of the parties in writing to #ule D, &ection 3, of the
#ules of +ourt, such an agreement will not be held valid where it practically negates the action of the claimants, such as
the private respondents herein. The philosophy underlying the provisions on transfer of venue of actions is the
convenience of the plaintiffs as well as his witnesses and to promote 94 the ends of 0ustice. +onsidering the expense and
trouble a passenger residing outside of +ebu +ity would incur to prosecute a claim in the +ity of +ebu, he would most
probably decide not to file the action at all. The condition will thus defeat, instead of enhance, the ends of 0ustice. *pon
the other hand, petitioner has branches or offices in the respective ports of call of its vessels and can afford to litigate in
any of these places. !ence, the filing of the suit in the +=( of >isamis -riental, as was done in the instant case, will not
cause inconvenience to, much less pre0udice, petitioner (S;eet (ine vs. 8eve), 2a, 19, 197#$.
Page 4 of 20
REMEDIAL LAW
PROVISIO,/L RE(EDIES
Q: In an action in personam" su&&ons *as served to de#endant" but the service o# su&&ons *as invalid'
Subse2uently" a *rit o# preli&inary attach&ent *as issued by the 0ud%e coverin% a property belon%in% to
de#endant' 6o cure the invalid service o# su&&ons" su&&ons *as later on served a%ain to the de#endant' )as
the su&&ons properly served throu%h the issuance o# the attach&ent$
'o. The attachment of petitionersF properties prior to the acuisition of 0urisdiction by the respondent court is void and that
the subseuent service of summons on petitioners did not cure the invalidity of such attachment. Therefore, it is reuired
that when proper officer commences implementation of the writ of attachment service of summons should be
simultaneously made 2-nate vs. Abrogar, E.#. 'o. 45C353 =ebruary 93, 4AA@6.
/: (ay the Court o# /ppeals issue a *rit o# preli&inary in0unction en0oinin% the decision o# CSC pendin% appeal$
A: 8es. 'either the Administrative +ode nor the +&+ rules deprive courts of their power to grant restraining orders or
preliminary in0unctions to stay the execution of +&+ decisions pending appeal. =urthermore, &ection G9 of #ule )( of +&+
>emorandum +ircular 4A/AA recogni:es the authority of the +A and the &upreme +ourt to issue restraining orders or
in0unctions. !aving appellate 0urisdiction over decisions of the +&+, the +A clearly has the discretion to issue an ancillary
writ of preliminary in0unction to secure the rights of private respondent pending appeal of his dismissal (CSC vs. C:, G.R.
No. 1.9/9/ Nove!er 17, "00.$.
Q: (ay a creditor still opt to avail o# preli&inary attach&ent *here the debt is already secured by a &ort%a%e$
A: 'o. The reason for the rule prohibiting attachment where indebtedness was already secured is to prevent the secured
creditors from attaching additional property and thus tying up more of the debtor"s property than was necessary to secure
the indebtedness. Thus, to sustain an order of attachment, it is incumbent upon the plaintiff to establish either of these
two facts: 2a6 that the obligation had not been secured originally and7 2b6 that if secured at its beginning, the security later
became valueless (S:(G:-O vs. C:, GR No. (9..3#1 2ar10 "/, 19#4$.
Q: In an e##ort to recover several pieces o# property" should the plainti## pray that a receiver be appointed to ta+e
control o# the properties$
A: 'o, a notice of lis pendens is sufficient. &ince a notice of lis pendens has been annotated on the titles of the disputed
properties, the rights of petitioners are amply safeguarded and preserved since there can be no risk of losing the property
or any part of it as a result of any conveyance of the land or any encumbrance that may be made thereon posterior to the
filing of the notice of lis pendens. -nce the annotation is made, any subseuent conveyance of the lot by the respondent
would be sub0ect to the outcome of the litigation since the fact that the properties are under custodia legis is made known
to all and sundry by operation of law. !ence, there is no need for a receiver to look after the disputed properties (<ivere
vs. Re,es, G.R. No. 1..40#, =e!r%ar, 13, "00#$.
Q: (ay the 0ud%e issue a *rit o# preli&inary attach&ent based on a plain underta+in% 8pro&issory note9 by the
applicant$
A: 'o. 1here a statute authori:ing attachment reuires, as a condition to the issuance of the writ, that a bond shall be
given by plaintiff to indemnify defendant for any loss or in0ury resulting from the attachment in case it proves to be
wrongful, a failure to give such bond is fatal, and an attachment issued without the necessary bond is invalid (:RE((:NO
vs. =(O7O, :.2. No. R879939100# Nove!er 14, 1994$.
Page 5 of 20
REMEDIAL LAW
SPECI/L CIVIL /C6IO,S
Q: Is there ta+in% o# property *hen the %overn&ent e1propriates airti&e$
A: Airtime. is not a finished product which becomes the property of the company, like oil produced from refining. Thus, no
private property is taken. As the government spends public funds in granting broadcast companies the privilege and in
supervising them, it would be strange if they cannot be reuired to render public service such as the use of airtime
2T$,$;A% vs. E>A '$T1-#H, E.#. 'o. 439A99. April 94, 4AAG6.
Q: (ay the e1propriated property be reverted to the lando*ner on the %round o# abandon&ent o# public
purpose$ 4o* about i# the action #or reversion is %rounded on non.pay&ent o# 0ust co&pensation$
A: 1hen there is abandonment of public purpose, it is then incumbent upon the expropriator to return the said property to
its private owner. -therwise, this is a denial due of due process. (f expropriating authority abandons public purpose for
another public purpose, it should file expropriation proceedings anew (2:C8:N vs. C:, G.R. No. 17//". =e!r%ar, ".,
"010$.
1hen there is non/payment of 0ust compensation, the general rule is that non/payment of 0ust compensation does not
entitle the private landowner to recover possession of the expropriated lots. !owever, in Rep%!li1 vs. (i (G.R. No.
1/1/./ 7%ne "9, "00.$, where the government failed to pay 0ust compensation within five 2@6 years from the finality of the
0udgment in the expropriation proceedings, the &upreme +ourt ruled that the owners concerned shall have the right to
recover possession of their property.
Q: 5 #iled a petition #or declaratory relie# and #or cancellation o# erroneous re%istration as alien' 4is action *as
predicated upon an /lien Certi#icate o# Re%istration' Is the &atter a proper sub0ect o# a petition #or declaratory
relie#$
A: 'o. This instrument is not a contract in which another party or person is involved. (t is a unilateral act of the petitioner
himself not affecting nor binding anyone else but himself, not creating any right or obligation on the part of any other party
or on that of the state, and, therefore, no one has interest therein except himself (O!iles vs. Rep%!li1, 9" P0il #/4$. The
sub0ect matter in a petition for declaratory relief is exclusive.
Q: )hat are the choice o# re&edies o# the &ort%a%e creditor a%ainst the estate o# &ort%a%or$
A: There are three alternative courses that section C, #ule GC 2now #ule G?6 of the #ules of +ourt, offers the mortgage
creditor, to wit, 246 to waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim7
296 foreclose the mortgage 0udicially and prove any deficiency as an ordinary claim7 and 236 to rely on the mortgage
exclusively, foreclosing the same at any time before it is barred by prescription, without right to file a claim for any
deficiency (PN> vs. C:, G.R. No. 1"1.97 7%ne "9, "001$.
Q: (ay creditors and assi%nees o# co.o*ners intervene in an action #or partition$
A: 8es. The creditors or assignees of the co/owners may intervene in an action for partition and ob0ect to its being effected
without their concurrence. !owever, they cannot impugn a partition already executed, unless there has been fraud or it
was made notwithstanding opposition to prevent it. >oreover, the party desiring to intervene must show a legitimate and
proper interest in the property sought to be partitioned and that such interest cannot be otherwise properly protected (-e
>or?a v. 7%+o, /4 P0il, 4/4$.
Q: )hat is the period to co&&ence action in unla*#ul detainer and #orcible entry cases$ )hat is the e1ception to
the rule$
A: The filing of the action must be made *ithin one 89 year after unlawful deprivation or withholding of possession. The
one 246 year period is counted from the last demand of the ,essor. !owever, *here &ubseuent demands after the initial
demand, were merely in the nature of reminders or reiterations of the original demand, the one/year period to commence
suit is counted from the first demand (Pris1ila <. Pa&re vs. Elias 2ala!anan, G.R. No. 1/./"0 Septe!er #, "00/$.
Q: Distin%uish civil and cri&inal conte&pt'
Page 6 of 20
REMEDIAL LAW
<(&T('+T(-'& +()(, +-'T$>%T +#(>('A, +-'T$>%T
-ffended %arty Against the party in whose behalf
the violated order was issued.
Against the authority or dignity of
the court, and against organi:ed
society and public 0ustice.
%urpose of %roceeding %rimarily +ompensatory or
#emedial
%rimarily %unitive
As to who is entitled thereto Aggrieved party or his successor,
or someone who has pecuniary
interest in the right to be
protected
&tate is the real prosecutor
As to intent (ntent is immaterial yet, good
faith or lack of intent is not a
defense.
(ntent is a necessary element
SPECI/L PROCEEDI,:S
Q: )hich court has 0urisdiction over a settle&ent proceedin%s$
A: (f the decedent is an inhabitant of the %hilippines at the time of his death, whether a citi:en or an alien, the 0urisdiction
is with the #T+ in which he resides at the time of his death.
(f the decedent is an inhabitant of a foreign country, the 0urisdiction is with the #T+ of any province in which he had his
estate.
NO8E@ 80e 1o%rt 'irst ta6in+ 1o+ni)an1e o' t0e settleent o' t0e estate o' a &e1e&ent, s0all exer1ise ?%ris&i1tion to t0e
ex1l%sion o' all ot0er 1o%rts.
Q: )hat is the deter&inative venue o# a settle&ent proceedin%s$
/: The residence of the decedent at the time of his death is the determinative of the venue.
$O'() (f the decedent was a non/resident of the %hilippines at the time of his death, it is when the venue will lie in
any province in which he had estate.
Q: )hat is the e1tent o# the 0urisdiction o# a probate court$
A: The 0urisdiction of the probate court is limited. (t only extends to the settlement and liuidation of the estates either
summarily or through the process of administration. The determination of title or ownership is only provisional for the
purpose of completing the probate sub0ect to a proper action raising the issue of ownership at the #T+ in a separate
action.
,O6E: (n the case of Roero v. C:, :pril 1#, "01", the +ourt ruled that:
As a general rule, the uestion as to title to property should not be passed upon in the testate or intestate
proceeding. That uestion should be ventilated in a separate action. That general rule has ualifications or
exceptions 0ustified by expediency and convenience.
Although generally, a probate court may not decide a uestion of title or ownership, yet if the interested parties are
all heirs, or the uestion is one of collation or advancement, or the parties consent to the assumption of
0urisdiction by the probate court and the rights of third parties are not impaired, then the probate court is
competent to decide the uestion of ownership.
Q: )hat is the nature o# the proceedin%s o# settle&ent o# the estate$
A: (t is a proceedin% in re& which is binding against the whole world.
Q: )hat are the re2uisites o# a valid e1tra0udicial settle&ent o# estate$
A:
Page 7 of 20
REMEDIAL LAW
4. The decedent left no will
9. The estate has no outstanding debts at the time of the settlement
3. The heirs are all of age, or the minors are represented by their 0udicial guardians or legal representatives
D. The settlement is made in a public instrument, stipulation or affidavit duly filed with the register of deeds.
@. The fact of such 0udicial settlement must be published in a newspaper of general circulation in the province once a
week for three consecutive weeks.
Q: (ay an action be &aintained a%ainst the survivin% spouse #or the recovery o# a debt char%eable a%ainst the
con0u%al partnership$
/: 'o such action can be maintained. The claim should be filed in the settlement proceeding of the estate of the deceased
spouse 2Cala v 8aAe&o6. 'either may the surviving spouse, after the death of the other, enter into an agreement
novatory of a contract executed by both of them during the lifetime of the deceased.
Q: )hen &ay a probate court pass upon the 2uestion o# title to property$
/:
4. (f the interested parties who are all heirs of the deceased consent thereto and the interests of third parties are not
pre0udiced
9. (f there"s a need to determine provisionally whether said property should be included/excluded from the inventory
without pre0udice to the final determination of title in a separate action.
Q: (ay the probate court allo* stran%ers to #ile action to recover property involved in the settle&ent
proceedin%s$
/: 8es. The probate court will allow such intervention, but only to protect their interest and not for decision on their claims
2-in+lasan v :n+ C0ia6
Q: (ay a probate court issue *rits o# e1ecution$
/:
Een #ule: 'o, because its orders usually refer to the ad0udication of claims against the estate which the executor
or administrator may satisfy without the need of executor process.
$xc: (nstances where the #ules allow to probate court to issue a writ of execution
*. To satisfy the contributive shares of the devisees/legatees/heirs in possession of the decedent"s
assets 2&ec.?, #ule GG6
+. To enforce payment of the expenses of partition 2&ec.3, #ule A56
,. To satisfy the costs when a person is cited for examination in probate proceedings 2&ec 43, #ule 4D96
(<&a. -e <alera v O'ila&a$
Q: Distin%uish E1tra0udicial Settle&ent v Su&&ary Settle&ent o# Estates o# S&all Value
/:
E1tra0udicial Settle&ent
Su&&ary Settle&ent . estate o# s&all
value
does not reuire court intervention
involves 0udicial ad0udication although in
summary proceeding
value of estate is immaterial gross estate does not exceed %45,555
allowed only in intestate succession allowed in both testate and intestate estates
proper only where there are no outstanding debts
of the estate at the time of settlement
available even if there are debts as the court
will make provisions for the payment
Page 8 of 20
REMEDIAL LAW
can be resorted to only at the instance and by
agreement of all the heirs
instituted by any interested party and even by
a creditor of the estate without the consent of
all the heirs
Q: )hat are the re2uisites o# a valid e1tra0udicial settle&ent o# estate$
/:
4. The decedent died intestate
9. There are no outstanding debts of the estate at the time of the settlement
3. The heirs are all of age, or the minors are represented by their 0udicial guardians or legal representatives
D. The settlement is made in a public instrument, stipulation or affidavit duly filed with the register of deeds7 and
@. The fact of such extra0udicial settlement must be published in a newspaper of general circulation in the province
once a week for 3 consecutive weeks.
Q: )hen does an action to annul a deed o# e1tra0udicial settle&ent on the %round o# #raud be #iled$
/: D years from discovery of fraud.
Q: 6o *ho& shall the *ill be delivered$
/: <elivery of the will is made to the +lerk of +ourt or the #T+ having 0urisdiction over the estate.
Q: Is the petition #or the probate o# the *ill sub0ect to bar by the statute o# li&itation$
/: 'o, it is not sub0ect to bar by statute of limitations and does not prescribe, as such petition may be filed at any time and
is reuired by public policy. (G%evara v G%evara$
Q: )hat are the re2uisites o# the reprobate o# a *ill in the Philippines$
/:
4. Testator was domiciled in the foreign country
9. The will has been admitted to probate in such country
3. The foreign court was under the laws of said foreign country, a probate court with 0urisdiction over the proceedings
D. The law on the probate procedure in said foreign country and proof of compliance
@. ,egal reuirements in said foreign country for the valid execution of the will.
(=l%eer v *ix$
Q: )ho is the ;ne1t o# +in<$
/: Those persons who are entitled under the statue of distribution to the decedent"s property, !is interest is more
preponderant, preferred in the choice of administrator (Ca!aAas v Ena+e$'
Q: )hat *ould happen i# pendin% an intestate proceedin%" a *ill *as discovered$
/: Testate proceedings take precedence over intestate proceedings. !ence, if intestate proceedings had been filed and a
will is discovered, probate proceedings may be instituted in a separate proceedings or by appropriate motion in the same
court' (Briarte v C=C o' Ne+ros$
Q: (ay Cler+ o# Court or Court E&ployees be appointed as special ad&inistrator$
/: They should not be appointed special administrators as thir ob0ectivity and impartiality may be compromised by
extraneous considerations (2e&ina v 2artine)$'
Q: (ay the property clai&ed by third persons be included in the inventory as part o# the assets o# the estate$
/: 8es. ;ut such order of the probate court is only prima facie determination and does not preclude the claimants from
maintaining an ordinary civil action for the determination of title 2<&a &e Pa) v <&a &e 2a&ri+al6'
Page 9 of 20
REMEDIAL LAW
Q: )here does the pay&ent o# the debts o# the estate be ta+e$
/:
4. =rom the portion or property designated in the will
9. =rom the personal property
3. =rom the real property 2in t0is or&er6
Q: (ay an e1ecutor or ad&inistrator purchase the property o# the estate under ad&inistration$
/: 'o. And so are the 0ustices, 0udges, prosecuting attorneys, clerk of court, and other officers and employees. Any sale
covered by this prohibition will be null and void. (:rt 1409 an& :rt 1491$
(S"-(A'
Q: (ay the estate o# a deceased *ho le#t a *ill be escheated$
/: 8es. (f the decedent died testate but his will was not allowed to probate, it is as if he died intestate and if he has no
known heirs and there are no persons entitles to his property, the same can still be escheated.
./A01IA$S-I2
Q: )hat are the three +inds o# %uardians under the la*$
/:
4. ,egal Euardian I who is such without the need of 0udicial appointment
9. Euardian Ad ,item I any competent person appointed by the court for purposes of a particular action or
proceeding involving a minor
3. Judicial Euardian I competent person appointed by the court over the person/ property of the ward
Q: (ay a court appoint as a %uardian any person *ho is not personally sub0ect to its 0urisdiction$
/: 'o. +ourts should not appoint such person 2i.e. non residents of %hilippines6 =G%errero v 8eran>
Q: )hat are the e##ects o# &arria%e or voluntary e&ancipation o# a *ard$
/: (t terminates guardianship only over the person but not property of the ward.
A1O2'IO$ and "/S'O1% of MI$O0S
Q: )hat %overns /doption$
/: #ule on Adoption 2A> 'o 59/?/59/&+6 approved on July 34,9559'
Q: Is the re%istration o# adoption &andatory$
/: #egistration is a compulsory reuirement. The registration of civil status is not limited by law to local adoption. =oreign
adoptions are registrable with the local civil registry and such an act is not inimical to private international law 2 Raire)9
2ar1ai&a v :+l%!at6'
Q: )hat are the %rounds to rescind the adoption$
/:
Page 10 of 20
REMEDIAL LAW
4. #epeated physical and verbal maltreatment by the adopted despite having undergone counselling
9. Attempt on the life of the adoptee
3. &exual assault or violence
D. Abandonment or failure to comply with parental obligations
'-T$: Adoption being in the interest of the child, shall not be sub0ect to rescission by the adopter. !owever, the
adopter may disinherit the adoptee for causes provided in Article A4A of the +ivil +ode.
Q: )hen should the adoptee #ile the petition to rescind adoption$
/: 1ithin @ years after he reaches the age of ma0ority or recovery from such incompetency.
-A3(AS "O02/S
Q: In *hat instances &ay the )rit o# 4abeas Corpus be availed o#$
/:
4. All cases of illegal confinement or detention
9. There has been deprivation of a constitutional right resulting in the restraint of a person
3. +ourt has no 0urisdiction to impose the sentence
D. $xcessive penalty has been imposed
Q: (ay the )rit o# 4abeas Corpus lie i# there3s already a 0ud%&ent by the courts$
/: -nly if the 0udgment of the court is no longer appealable. (f the 0udgment is still appealable, then the remedy of the
person detained is to duly appeal7 habeas corpus is not a substitute for appeal 2Pa+%ntalan v -ir. O' Prisons6
Q: Distin%uish bet*een Preli&inary Citation and Pere&ptory )rit
/: %reliminary citation is where the person detained under the governmental authority and the illegality of his detention is
not patent from the petition for the writ, the court may issue a citation to the government officer having the person
in his custody to show cause why the writ should not issue. %eremptory writ, on the other hand, is issued when
the cause of the detention appears to be patently illegal, and the non/compliance wherewith is punishable 2 (ee
4i16 *on v Cns%lar Colle1tor o' C%stos6
"-A$.( O4 $AM(
Q:)hat Is a Clerical Or 6ypo%raphical Error$
/: As defined under #A 454C9, a clerical or typographical error. refers to a mistake committed in the performance of
clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous,
such as misspelled name or misspelled place of birth, mistake in the entry of day and month in the date of birth or
the sex of the person or the like, which is visible to the eyes or obvious to the understanding, and can be
corrected or changed only by reference to other existing record or records: %rovided, however, That no correction
must involve the change of nationality, age, or status of the petitioner..
Q: So ho* do you apply #or a correction under R/ ?@A$
/: (t shall be in the form of an affidavit, subscribed and sworn to before any person authori:ed by law to administer oaths.
Q: )hat chan%es *ere brou%ht by R/ ?@A$
/: ;efore it was only clerical or typographical errors and change in the first name or nickname of a person which may be
changed or corrected by a city or municipal civil registrar or consul general without a 0udicial order, #A 454C9 now
allows changes or corrections in the month and date of birth and sex of a person, even without the person
petitioning the court.
Page 11 of 20
REMEDIAL LAW
SMALL "LAIMS
Q: Is #ilin% o# #ees re2uired$
/: *nless allowed to litigate as an indigent, you have to pay the regular filing fees. (n any case, even when declared an
indigent, you >*&T pay the %4,555.55 fee for service of summons and processes in civil cases.
Q: 4o* to apply as an indi%ent liti%ant$
/: The proper motion must be filed . (f the motion is denied, you have @ days within which to pay the docket fees,
otherwise the case will be dismissed.
Q: /re la*yers allo*ed to appear$
/: 'o attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or
defendant.
EVIDE,CE
Q : )hat is ;e2uiponderance o# evidence rule<$ :ive an e1a&ple o# its application'
A : 1hen the scale shall stand upon the euipoise and there is nothing in the evidence which shall incline it to one side or
the other, the court will find for the defendant.
*nder said principle, the plaintiff must rely on the strength of his evidence and not on the weakness of defendant"s claim.
$ven if the evidence of the plaintiff may be stronger than that of the defendant, there is no preponderance of evidence on
his side if such evidence is insufficient in itself to establish his cause of action.
Q : )hat are the instances that secondary evidence &ay be presented in court$
A : 4. 1hen the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the
offeror7
9. 1hen the original is in the custody or under the control of the party against whom the evidence is offered, and the
latter fails to produce it after reasonable notice7
3. 1hen the original consists of numerous accounts or other documents which cannot be examined in court without
great loss of time and the fact sought to be established from them is only the general result of the whole7 and
D. 1hen the original is a public record in the custody of a public officer or is recorded in a public office.
Q : 4o* do you prove the authenticity o# any private electronic docu&ent o##ered and received in evidence$
A : 2a6 by evidence that it had been digitally signed by the person purported to have signed the same7
2b6 by evidence that other appropriate security procedures or devices as may be authori:ed by the &upreme +ourt
or by law for authentication of electronic documents were applied to the document7 or
2c6 by other evidence showing its integrity and reliability to the satisfaction of the 0udge.
Q : )hat is an electronic si%nature$ 4o* do you authenticate electronic si%natures$
A : An electronic signature or a digital signature authenticated in the manner prescribed hereunder is admissible in
evidence as the functional euivalent of the signature of a person on a written document.
Page 12 of 20
REMEDIAL LAW
An electronic signature may be authenticated in any of the following manner:
2a6 ;y evidence that a method or process was utili:ed to establish a digital signature and verify the same7
2b6 ;y any other means provided by law7 or
2c6 ;y any other means satisfactory to the 0udge as establishing the genuineness of the electronic signature.
Q : State the rule o# ad&issibility o# si&ilar acts as evidence'
A : $vidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the
same or a similar thing at another time7 but it may be receive to prove a specific intent or knowledge, identity, plan,
system, scheme, habit, custom or usage, and the like.
Q : )hen is a state&ent ad&issible as part o# the res gestae$
A : =or part of the res +estae to be admissible, there must be a statement made by a person while a startling occurrence
is taking place or immediately prior to or subseuent thereto in respect to the circumstances thereof.
Q : )hen to use a &otion to stri+e$
A : A motion to strike may be availed in the following instances:
4. 1hen the answer is premature7
9. 1hen the answer of the witness is irrelevant, incompetent or otherwise improper7
3. 1hen the answer is unresponsive7
D. 1hen the witness becomes unavailable for cross examination through no fault of the cross examining party7
or
@. 1hen the testimony was allowed conditionally and the condition for its admissibility was not fulfilled.
Q : Distin%uish #or&al o##er o# evidence #ro& o##er o# proo#Bpro##er o# evidence'
A : =ormal offer of evidence refers to either to the offer of the testimony of a witness prior to the latter"s testimony or the
offer of the documentary and ob0ect evidences after a party has presented his testimonial evidence.
-ffer of proof, the process by which a proponent of an excluded evidence tenders the same. (f what has been excluded
is testimonial evidence, the tender is made by stating for the record the name and other personal circumstances of the
proposed witness and the substance of his proposed testimony. (f the evidence excluded is documentary, the offer of
proof is made by having the same attached to or made a part of the record.
Page 13 of 20
REMEDIAL LAW
CRI(I,/L PROCEDURE
Q: Distin%uish 0urisdiction over sub0ect &atter #ro& 0urisdiction over person o# the accused'
A: Jurisdiction over sub0ect matter refers to authority of the court to hear and determine particular criminal case.
Jurisdiction over the person of the accused refers to the authority of the court over the person charged, which reuires
that the person charged with the offense must have been brought into its forum for trial, forcibly by warrant of arrest or
upon his voluntary submission to the court 2Antiporda v Earchitorena, 394 &+#A @@46
Q: )hat is the 0urisdiction in cri&inal cases$
A: Jurisdiction of a court over a criminal case is determined by the allegations in the complaint or information.+riminal
action should instituted and tried in the court of the territory where the offense was committed or where any of its essential
ingredients occurred. 2;onifacio v #T+ of >akati E#. 4GDG556.
$xceptions:
a6 Art 9 #%+. Against an offender who:
a. &hould commit an offense while on a %hilippine &hip or Airship7
b. &hould forge or counterfeit any coin or currency note of the %hils. -r -bligations and &ecurities
issued by the government.
c. &hould introduce the same to the %hilippines
d. 1hile being public officers and employees, should commit an offense in the exercise of their
functions7 or
e. &hould commit any crimes against national security and law of nations.
b6 +hange of venue to prevent miscarriage of 0ustice 2&ec @ KDL, Art )((( 4AGC +onstitution6
c6 1here offense is committed in a train, aircraft, or other private or public vehicle. (t maybe instituted and tried
in the court of any municipality or territory where said train, aircraft, or vehicle passed during its trip. The crime
may also be instituted and tried in the place of departure and arrival 2#ule 445, &ec 4@ KbL6
Q: )hen &ay in0unction be issued to restrain cri&inal prosecution$
A: Eeneral rule: The +ourt will not issue writs of prohibition or in0unction preliminary or final, to en0oin or restrain, criminal
prosecution.
$xceptions:
a6 to afford protection to the constitutional rights of the accused7
b6 when it is necessary for the orderly administration of 0ustice, or avoid oppression, or multiplicity of actions
c6 pre0udicial uestion which is sub0udice7
d6 when the acts of the officer are without or in excess of authority7
e6 where prosecution is under in an invalid law7
f6 double 0eopardy is clearly apparent7
g6 lack of 0urisdiction over the offense7
h6 where it is a case of persecution rather than prosecution7
i6 where charges are manifestly false and motivated my by lust for vengeance7
06 when there is clearly no prima facie case against the accused M motion to uash has been denied 2;rocka v
$nrile E#. ?AG?3/?@6
Q: )hen &ay cri&inal actions be en0oined$
A: An instance is where a court en0oins the prosecutor"s office from proceeding by filing an in0unctive relief due to lack of
probable cause.
Page 14 of 20
REMEDIAL LAW
Q: )hat is the rule on su##iciency o# co&plaint or in#or&ation$
A: A complaint or information is sufficient if it states the name of the accused, the designation of the offense by the statute,
the acts or omissions complained of as constituting the offense, the name of the offended party, the approximate date of
the commission of the offense and the place where the offense was committed 2%eople v Teodoro E#. 4CD5?@6
The test is whether the crime is described in the intelligible terms with such particularity as to apprise the accused with
reasonable certainty, of the offense charged 2,a:arte v &andiganbayan E#. 4G54996
@.9.G. <uplicity of the offense7 exception
Eeneral rule: complaint or information must charge only one offense.
$xception:
a6 1hen the law prescribes single punishment for various offenses 2+omplex crimes6
b6 =ailure to interpose ob0ection that constitutes waiver
Q: )hat is the rule on a&end&ent or substitution o# co&plaint or in#or&ation$
A: ,eave of court is reuired even if made before the plea if:
a6 the amendment downgrades the nature of the offense charged
b6 the amendment excludes any accused from the complaint or information
(f the amendment is made after the plea of the accused and during trial, any formal amendment may only be made under
two conditions, namely:
a6 with leave of court
b6 amendment is not pre0udicial to the rights of the accused
Q: )ho &ay issue a hold departure order$ )hat are the %rounds$
A: The &ecretary of Justice may issue !<-, when:
4. Against the accused irrespective of nationality for criminal cases pending before the #T+.
9. Against aliens whose presence is reuired as a <efendant, #espondent or 1itness in a civil or labor case
pending litigation
3. The &ecretary of Justice may issue a hold departure order, ot% propio, or upon reuest of any
government agency, in the interest of national security
Q: )4/6 IS 64E RULE )I64 RESPEC6 6O 64E RI:46 6O -E I,COR(ED OC 64E ,/6URE /,D C/USE OC
/CCUS/6IO,$
A: =or this constitutional right, it is necessary for the complaint or information to contain those matters reuired by the
statute or by the #ules of +ourt. (as provi&e& %n&er R%les 110 o' ROC$
Q: )4/6 IS 64E RI:46 6O COU,SEL OC 64E /CCUSED$
A: As provided in #-+, the accused has the right to be defend in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of 0udgment.
Q: (/7 64E RI:46 OC COU,SEL I, / CUS6ODI/L I,VES6I:/6IO, (/7 -E )/IVED$
A: 8es, provided that the waiver is voluntary and intelligent. !ence, the waiver must be in writing and in the presence of
the counsel of the accused (People v. -el Castillo$
Q: )4/6 IS / CO(PE6E,6 /,D I,DEPE,DE,6 COU,SEL$
Page 15 of 20
REMEDIAL LAW
A: (n the 9545 case of (%ano+ v. People, it was held that an effective and vigilant counsel necessarily and logically
reuires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first
uestion until the signing of the extra0udicial confession. The lawyer should also ascertain that the confession is voluntary
and that the person under investigation fully understands the nature and conseuences of his extra0udicial confession in
relation to his constitutional rights.
,O6E: /n e1tra0udicial con#ession e1ecuted by a suspect assisted by a counsel *ho #ailed to &eet the standards
o# an independent and co&petent counsel is dee&ed an uncounseled con#ession and hence" inad&issible in
evidence'
Q: 4O) IS 64E RI:46 6O / SPEED7 6RI/L DECI,ED$
A: (t is as one free from vexatious, capricious and oppressive delays, its purpose being to assure that an innocent person
may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the
shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may
interpose.
,O6E: 6his ri%ht does not preclude 0usti#iable postpone&ents and delays *hen *arranted by the situation'
Q: )4/6 IS 64E RE(ED7 COR / VIOL/6IO, OC 64E RI:46 6O SPEED7 6RI/L$
A: The trial court may dismiss a criminal case on a motion if the accused is not brought to trial within the prescribed time
and deprived of his right to speedy trial on account of unreasonable or capricious delay.
'-T$: The said dismissal is euivalent to an acuittal and double 0eopardy may attach even if the dismissal is with the
consent of the accused. (n a 955A case, (8an v. People$, the court ruled that ;as a %eneral rule" the dis&issal o# a
cri&inal case resultin% in ac2uittal" &ade *ith the e1press consent o# the accused or upon his o*n &otion" *ill
not place the accused in double 0eopardy' 6his rule" ho*ever" ad&its o# t*o e1ceptions" na&ely: insu##iciency o#
evidence and denial o# the ri%ht to speedy trial<
Q: )4/6 /RE 64E :UIDELI,ES 8-/L/,CI,: 6ES69 6O DE6ER(I,E VIOL/6IO, OC 64E RI:46 6O SPEED7
6RI/L$
A:
4. ,ength of delay
9. #easons for such delay
3. The assertion or failure to assert such right by the accused
D. The pre0udiced caused by the delay
Q: )4/6 IS 64E DIS6I,C6IO, -E6)EE, 64E CL/I( OC 64E PRIVILE:E -7 /, /CCUSED /,D -7 / (ERE
)I6,ESS$
A: As held in C0ave) v. C:, whereas an ordinary *itness may be compelled to take the witness stand and claim the
privilege as each uestion reuiring an incriminating answer is shot at him, an accused may altogether refuse to take the
witness stand and refuse to answer any and all uestions.
Q: )4/6 IS 64E RI:46 6O 6ES6IC7 /S / )I6,ESS$
A: The accused has the right to testify as a witness in his own behalf but sub0ect to cross examination on matters covered
by the direct examination.
Q: )4/6 IS 64E ECCEC6 IC /RR/I:,(E,6 IS ,O6 CO,DUC6ED 6O 64E /CCUSED$
A: As held in 2iran&a v. 8%liao, without a prior arraignment, the accused cannot invoke double 0eopardy. Also, if the
accused has not been arraigned, he cannot be tried in absentia.
Q: )4/6 IS 64E RULE COR /RR/I:,(E,6 U,DER /, /(E,DED I,COR(/6IO,$
Page 16 of 20
REMEDIAL LAW
A: 1here the accused has been already arraigned and subseuently" the in#or&ation *as substantially a&ended, an
arraignment on the amended information is mandatory since the accused has the constitutional right to be informed of the
accusation against him' I# the a&end&ent is only as to #or&, there is no need for another preliminary investigation and
the retaking of the plea of the accused.
Q: IS 64E PRESE,CE OC 64E OCCE,DED P/R67 REQUIRED I, 64E /RR/I:,(E,6$
A: The presence of the offended party is reuired for the following purposes:
%lea bargaining
<etermination of civil liability
-ther matters reuiring his presence
,O6E: I# the accused #ails to appear despite due notice the court &ay allo* the accused to enter a plea o# %uilty
to a lesser o##ense *hich is necessarily included in the o##ense char%ed *ith the con#or&ity o# the trial
prosecutor alone'
Q: )4E, )ILL -E / PLE/ OC ,O6 :UIL67 -E E,6ERED 8aside #ro& an actual plea o# not %uilty9$
A:
(f the accused refuses to plead
(f the accused makes a conditional plea
(f the accused pleads guilty but presents exculpatory evidence in which case the guilty plea shall be deemed
withdrawn and a plea of not guilty shall be entered
Q: IS 64E /-SE,CE OC PRO-/-LE C/USE / :ROU,D 6O QU/S4 /, I,COR(/6IO,$
A: 'o. (t is not a ground for the uashal of the information but a ground for the dismissal of the case. (People v.
San&i+an!a,an$
Q: )4/6 IS 64E ECCEC6 OC C/ILURE 6O /SSER6 /,7 :ROU,D OC / (O6IO, 6O QU/S4$
A: As a general rule, the failure to assert any ground of a motion to uash before a plea, shall be deemed a waiver of any
ob0ections. 4o*ever" the #ollo*in% are not *aived:
That the facts charged do not constitute an offense
That the court trying the case has no 0urisdiction over the offense charged
That the criminal action has been extinguished
<ouble 0eopardy
Q: )4/6 IS 64E ECCEC6 OC 64E ,O, /PPE/R/,CE OC 64E COU,SEL I, 64E PRE.6RI/L CO,CERE,CE$
A: (f the counsel for the accused or the prosecutor does not appear in the pre/trial conference, the court may impose the
proper sanctions or penalties, if the counsel or prosecutor absent does not offer an acceptable excuse for his lack of
cooperation.
Q: )4/6 IS 64E ECCEC6 OC ,O6 -RI,:I,: 64E /CCUSED 6O 6RI/L )I64I, 64E PRESCRI-ED PERIOD$
A: (f the accused is not brought to trial in accordance within the time limit set by the #ules of +ourt, the information may
be dismissed upon motion of the accused on the ground of his denial of his right to speedy trial.
Q: )4/6 /RE 64E REQUISI6ES OC 64E DISC4/R:E OC 64E /CCUSED 6O -E / S6/6E )I6,ESS$
A:
Page 17 of 20
REMEDIAL LAW
There is absolute necessity for the testimony of the accused whose discharge is reuested
That there is no direct evidence available for the proper prosecution of the offense committed, except the
testimony of the accused
That the testimony of said accused can be substantially corroborated in its material points
&aid accused does not appear to be the most guilty
&aid accused has not at any time been convicted of any offense involving moral turpitude
Q: )4/6 /RE 64E REQUISI6ES COR 64E /CCUSED 6O -E 6RIED I, /-SE,6I/$
A:
That the accused has already been arraigned
That the accused has been duly notified of the trial or hearings
That the absence of the accused or his failure to appear is un0ustified
Q: )4/6 /RE 64E DICCERE,CE O, 64E ECCEC6S OC / DE,I/L OC DE(URRER 6O EVIDE,CE I, / CIVIL C/SE
/,D I, / CRI(I,/L C/SE$
A: (n a civil case, the defendant has the right to file a demurrer to evidence without leave of court. (f his demurrer is
denied, he has the right to present evidence. (f it is granted and on appeal by the plaintiff, the appellate court reverses the
order and renders 0udgment for the plaintiff, the defendant loses his right to present evidence.
(n a criminal case, the accused has to obtain a leave of court to file a demurrer to evidence. (f he obtains leave of court
and his demurrer is denied, he has the right to present evidence in his defense. (f it is granted, he is acuitted and the
prosecution cannot appeal.
(f the accused does not obtain leave of court and his demurrer to evidence is denied, he waives his right to present
evidence and the case is decided on the basis of the evidence for the prosecution.
Q' )47 S4OULD 64E DUD:(E,6 I, )RI6I,:$
A. 1hen a 0udgment is in writing, the 0udgment would not be of any value to the accused when he appeals his conviction
to a higher court. The 0udgment would not be binding.
Q' )4/6 /RE 64E CO,6E,6S OC CO,VIC6IO,$
' ,egal ualification of the offense constituted by the acts committed by the accused
A' Aggravating and mitigating circumstances which attended the commission of the offense
E' %articipation of the accused
!' %enalty imposed
F' +ivil liability or damages caused by the wrongful act to be recovered from the accused
Q' (/7 DUD:(E,6 -E PRO(UL:/6ED I, 64E /-SE,CE OC 64E /CCUSED /,D 64E DUD:E RE,DERI,: I6$
A. E#: 'o
$N+$%T(-': 1hen the conviction involves light offenses only, and the 0udge rendering it is outside the province or city. (n
such case, the court may read the promulgation.
Q' )4E, DOES DUD:(E,6 -ECO(ES CI,/L$
4. 1hen no appeal is seasonably filed by the accused, except in case of automatic review of the decision imposing
the capital punishment
9. 1hen the accused has partially or totally served his sentence
3. 1hen he expressly waives his right to appeal the 0udgment except when death penalty is imposed
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REMEDIAL LAW
D. 1hen he applies for probation
Q' )4/6 IS 64E ECCEC6 )4E, / DECISIO, PE,,ED -7 / DUD:E )/S PRO(UL:/6ED /C6ER 4IS
RE6IR(E,6$
A. <ecision will not acuire a binding effect, it is null and void. 1hen a 0udge retires all his authority to decide any case to
write, sign, and promulgate the decision thereon also retires. with him.
Q' )4/6 /RE 64E :ROU,DS COR ,E) 6RI/L$
A. $rrors of law or irregularities have been committed during the trial pre0udicial to the substantial rights of the
accused
;. 'ew and material evidence has been discovered which the accused could not, with reasonable diligence have
discovered and produced at the trial and which if introduced and admitted would probably change the 0udgment.
Q' )4/6 /RE 64E :ROU,DS COR RECO,SIDER/6IO, )I64OU6 CUR64ER PROCEEDI,:S$
A. $rrors of law or fact which reuire no further proceedings
Q' )4/6 /RE 64E ECCEC6S OC / ,E) 6RI/L$
A. 1hen new trial is granted, the original 0udgment is vacated. (f predicated on errors of law or irregularities, the original
evidence is set aside and new one is allowed to be introduced. (f based on newly discovered evidence, the original
evidence stands, and new one is considered together with that already in the record.
Q' )4/6 IS 64E /PPLIC/6IO, OC 64E $(%2(S 1O"'0I$( I, CRI(I,/L C/SES$
A. (t shall have the same effect as that in civil case. &ince the modes of appeal to the +A and &+ in civil and criminal
cases are the same, no cogent reason exists why the periods to appeal from the #T+ 2in the exercise of its original
0urisdiction6 to the +A in civil and criminal cases under +ivil %rocedure and +riminal %rocedure should be treated
differently. 2Judith 8u v. Tatad, 95446
RULE AA /PPE/L
Q' 4O) (/7 /PPE/L -E 6/GE,$
Q' I, C/SES PU,IS4/-LE -7 DE/64 PE,/L67" 4O) IS /PPE/L 6/GE,$
A. 'otice of appeal is not really necessary7 case will be automatically reviewed by the +ourt of Appeals.
Q: )4/6 IS 64E DUR/6IO, OC 64E V/LIDI67 OC / SE/RC4 )/RR/,6$
A: (t shall be valid for ten days from its date.
Q: )4/6 /RE 64E E5CEP6IO,S 6O 64E SE/RC4 )/RR/,6 REQUIRE(E,6$
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REMEDIAL LAW
A:
4. 1arrantless search incidental to a lawful arrest
9. &ei:ure of evidence in plain view
3. &earch of a moving vehicle
D. +onsented warrantless search
@. +ustoms search
?. &top and frisk
C. $xigent and emergency circumstances
G. &earch of vessels and aircraft
A. (nspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.
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